usually accorded to witnesses and parties in attendance upon a trial of a cause in court. There was no claim made, that the mere service of the notice on defendant, requiring bim to appear and answer at the September term of the court, the service being made in April, in any manner interfered with the trial of the cause then pending and upon which the defendant herein was then in attendance. Upon the facts disclosed on the record, we hold that the motion to quash the notice and service thereof must be overruled. and it is so ordered.
See Larned v. GriJftn, 12 FED. REP. 590; Matthew 606, note.
Puffer. 10 FED. REP.
B. & Q. By. Co.
,circuit Court, D. Iowa. 1882.)
1. HIGHWAY CROSSINGS ON .RAILROADS-NEGLIGENCE-PERSONAL INJURIES.
The liAbility of a railroad company for death or personal injuries caused by the neglect of the company to pnt up at highway crossings the sign-board to warn travelers along the highway ot danger from the proximity of the railroad train, doesnol attach absolutely under the statute where it appears the damages sustained were the result of the injured party', own negligence, and were not caused by the absence of the sign-board.
8AME-S':l'ATUTE CONSTRUED-SINGN-BOARDS AT CROSSINGS.
The intention of the statute was not to create an absolute liability on the part of the railroad company, but to make the failure to provide sign-boards at highway crossings conclusive evideJlce of negligence on the part of the com· pany.
This action before the court· on motion for a new trial on the "ground of misdirection to the jury as to the lav- of the case. Plain. tiff's intestate was killed by a mo-ving trainwhile'ilittempting to cross defendant's road with a team ata public crossing. The statute of Iowa, § 1288, requires a sign-hoard" to be set up' at pn,blic crossings as a warning, and plaintiff dlaiIIl.ed" that the ne,gJect to set up such sign-board at the highway crossing where the injury occurred . made tire defendant absolutely liable under the statute. and'requested "the court to charge the jury to which the 'llourt refused. .The questioilwas upon the cOllstruc.tioll of the statute, which iBas 'follows.
FIELDV. CmOAGO, ll... Q. BY. 00.
Sec. 1281:1, Code of Iowa... Every corporation constrUcting or operating a railway shall make proper cattle-guards where the same enters or leaves any improved or fenced land, and construct at all points where such railway crosses any public highway, good, sufficient, and sale crossings and cattle-guards, and erect at such points, at a sufficient elevation from such highway to admit of free passage of vehicles of every kind, a sign, with large and dIstinct let· ters placed thereon, to give notice of the proximity of the railway and warn persons of the necessity of looking out for the cars; and any railway company neglecting or refusing to comply with the provisions of this section shall be liable lor all dama.qes sustained by reason 01 such: neglect and relusal, and in order for the injured party to recover, it shall only be nl:\cessary for him to prove such neglect and refusal." .
William McNett, John A. Shank, and Barcroft cE Gatch, for plaintiff. H. H. Trimble, J. W. Blythe, and Stiles cE Lathrop, for defendant. LOVE, D.J. What is meant by the terms "absolute liability" as here sed? They mean a liability created by positive law, free from any conditions whatever. That is absolute which is unconditional. Thus the relation of cause and effect between negligence and the injury is a condition, and the plaintiff's own conduct as to negligencecontrib. uting to the injury is a condition. Both of these' areat-eommon Ill. w conditions to be considered in the right of recovery. But accord. ing to the plaintiff's doctrine the statute dispenses with all Mnditions by creating an absolute liability. Thus, having proved the defend· ant's negligence, the plaintiff contends that the statute imposes an absolute liability for the injury, even though the sign had nothing to do whatever in causing the injury; and the same result would follow, assuming the fact to be that the plaintiff's own misconduct wall an essentially contributing cause,or even the sole oause, of the injury. Supposing, indeed, that the absence of the sign-board hadhothingto do in causing the injury, it must have been either entirel)t'fGrtuitlous or the result of the plaintiff's own negligence. " , It is a fundatnentalrule·in the interpretation of statutes that the construction tnUst be put upon the-whole and not.a part ofthewords of the act or clause. An'interpretation which gives no forcea.nd ef· feet whatever to some important and significant words in a. clause or section tnu1it be rejected; in the absence of aome conclusive TeaS6n' for disregarding them as'mere aurplusage. Now it seems ,to us that 'if the plaintiff's construction of section ,1288 be correct,the oourt must entirely reject and disregard: the words "sustained by reason of such 'neglect and refusal, " in 'the ciausewhich providesthafl "any railway company neglecting or refusing to eomplywith the- provisions of this llection shall be liable for damages sustained by reason (If such
andrefusaU' ,According to the plaintiff's construction the company is liable for alt damages sustained by the plaintiff, and not 'merely such damages as are sustaimid by reason of the "neglect or refusal;" in other words, the defendant is liable, according to this theory, for'tIle dal;Uages sustained, whether the same result from the ,or not. For the plaintiff contends that the statute imposes an "absolute liability," not a liability depending upon any conditions whatever. It is unimportant, in this view, whether the condition of cause and effe,ct between the negligence and the injury exists or not; iIi other words, it is not a necessary condition that the damages should be sustained by reason of the defendant's nog]ect or refusaL ' Even though there should be no connection or relation whatever between the want ofa proper sign and the accident; nay, more" though the accident should be the direct and sale result of, the ·defendant must pay the damages, since the statute creates an "absolute liability." This construction, therefore, simply eliminates from the statute, the words "all damages sustained by rcason of such neglect and refusal." Ido not forget ,that the section, further provides that "in order for it shall only be necessary for him to prove the injured such neglect and. refusal." But these words must be construed in already quoted, and so as to harmonize with connectiop with. them. ",It is not necessary to put upon these words a construction whioh would J;'ender the words first quoted nugatory. The words last, quotedPY;Do means neoessarilyimply that thedllfendant's liability thereby making the words first shall be a.bsolute and ,quoted meresurpll;tsage, and cutting off, as oounsel contend, all inquiry into the plaintiff's.misconduct or negligence. The words, which provide that in order for the injured party to refor,him to prove the defendant's negcover it shall "only be ]ect:or refusal" to erect the sign, relato ex vi termini rather to the Pleasure of the plaintiff's proof to the natureanll extent of the defendant's liability. Nothing is said in this seotion itb<lUt the, defendant's ,liability being absolute. If it was the purpose of the legislature to ,make soradioal a change in the law, why was it not expressly qecla.reclJhat the Jiability should be,absolute and the de-, fense of oontributory negligence abolished? Why was so important an innovl1tion;left to, be, inferred frpm a. provision as to whatit should be neceS.8ar.y I<)r lhe ,plaintiff ,to prov,El in order to case?' cQurt of Iowa hAq.,Plilfore the passage of the sta-tu,te in .thel',liIe' that the plaintiff, must ·,in, case ,of per-
sortal iuj ilry, in oider to rec'over, prove not only the 'negligence aitha defendant,but his own freedom from contributory negligence. This rule has always been considered unjust and illogical by many'members of the bar, and I see no reason to doubt that it was the purpose of this1egislation, in the provision underdiscu8sion, simply to relieve the plaintiff bfthis unjust double burden. The legislature simply intended to say to the party injured: "It shall only'benecessaryfor you, in order to recover, to prove the negligence of the defendant in failing to comply with the statute; jt shall not be necessary for you to go further and' prove that you yourself were not in fault." , This construction not only harmonizes the two ,pro:visions of the section quoted 'above, but it is in strict accordance with our como. mon legal parlance. It is not unusual in legallangl1agetosay that it is only necessary for the plaintiff, in order to make out his case, to prove so and so, without feir, a moment: intending to imply that the defendant's liability shall thereby be made absolute, and that he shall be precluded from setting up .any proper and usual defense. Again, a construction ought, if possible, to be avoided which leads to. injustice or absurdity; and to a plain 'infraction. of established., prin· ciples, since it is unreasonable to suppose that the legislature in· tended such results. Let us. subject the plaintiff's construction to this test. The liability to ,the, injured party can:not beat thesallle: time absolute and conditional. It must l>e' one. or the. other. If, therefore, the plaintiff's construction is oorrect,the railway company must be unconditionally liable for .the injury suffered by reason 'of the mere fact of failing to erect the sign., Now, the absence of the sign mayor may not cause the injury or even contribute to it.. The plaintiff's doctrine is tillit the statute creates an absolute liability,and. therefore it makes no difference whatever whetber. any relation of cause and effect exists between the . negligenc6. and tbl.'l injuryor:notA This would seem to be illogical, absurd, andtitterly; repugnant to establishedprinciples of la.w. Thus' a sign, if it existed,:cou.ldgiveno warning to a blind man, and yet, s,ecorJingto .th.e.plaintiff'aview,:if a blind man sbouldventure' upon ·the injury,. though he should himself 'beentitely in. fault, .the. company"'l,W)ul!,l be liable. ·Again, if a party in pitch darknes8should; to listen for a coming tl'lJ,i,n or to look outforitslightli,rus!l-'upootthe' crossing and suffer injury, would the of the .sign, althollgb if.,the'·sign: were: pxese:nli it ,could" .. 8I.mp.n irtfnll:vie\l\·ota
his danger should be, against his own will, carried by an ungovernable horse upon the crossing, the company would be liable for the injury to both man and animal because of the absence of the sign. Again, suppose a pa,rty should see a train approaohing the crossing, he would then have all the warning that a sign could give; yet if he should rashly and of his own negligence venture upon the crossing, taking the chances of esoape, the company would be liable for his injuries because of its failure to have up the sign. Thus, if the plaintiff's doctrine of "absolute liability" be sound, might a party recover damages resulting entirely and absolutely from his own fault and negligence. This would be unjust and absurd, as well as clearly repugnant to the provision of the statute that the damages recovered" shall be "sustained by reason of the negleot or refusal" of the company to erect the sign. It is said that this absolute liability is founded upon considerations of public policy, and that the legislature so intended it; that the provision was intended to be punitive,-a Bort of fine imposed upon the company to compel them to comply with the requirement of the statute. But we have seen that, to give the statute this construction it would be neoessary to reject or disregard certain express words of the act, and no argument from convenience or polioy can justify the court in refusing to give any effect whatever to express words in a statute. Besides, it is difficult to see what sound policy there would be in a law that while inflicting unjust penalty upon one party would encourage negligence in another, by assuring him of damages even resulting from his own carelessness. Sound policy requires that both parties in this class of cases should be put to the exercise of diligence by being made to know that damages may result to them from their failure to exercise reasonable care. If the plaintiff's doctrine be sound, I can see no good reason why a party might not recover for injuries resulting from his own misconduot in passing a orossing in the face of danger. The plaintiff's oounsel admit that there could be no recovery in such case because of the principle that a party can take no advantage from his own wrong. But is not a party's' negligence his own wrong as well as his willful misoonduct? The difference between negligence and willfulness in a civil action for damages is in the degree only, and not in the essence of the wrongdoing. If, moreover, the statute imposes an absolute liability, and inflicts a sort of fine upon the railway company as 80 penalty for its non-compliance with the law, and this upon grounds of public
FIELD 'D. OmOAGO, B. &: Q. BY. 00·
. policy, what difference can it make in the question of contributory negligence whether the plaintiff's injury is the result of his mere negligence or his willful misconduct? Undoubtedly the statute makes the failure on the part of the company to erect the sign conclusive evidence of negligence. If is negligence per se, and no evidence can be received to remove from the company the impntation of negligence. To this extent the statute changes the common law; but does it follow, in the absence of express words, that the legislature intended to still further change the common law by dispensing with the necessity of all diligence and care on the part of the injured? Was it intended that.a plaintiff might willfully and intentionally, or with gross and wanton negligence, precipitate himself in the face of danger, seeing his peril, upon the crossing, and still recover damages for injuries thus received? In other words, was it the intention of the legislature to repeal by mere implication. the long-established doctrine of contributory negligence with reference to cases arising under this statute, and give. the plaintiff damages caused by his own m.isconduct? And could it have been the purpose of this legislation to give the plaintiff damages although it should clearly appear that his injuries resulted in nowise from the defendant's negligence in failing to erect the sign, but from some other and wholly different cause? And if the latter question be answered in the affirmative, how are we to reconcile such an answer with the express provision of the statute that the defendant "shall be liable for all damages sustained by reason of 8uch neglect
It seems to me that if it had been the purpose of the legislature to make such radical changes in the law involving, in many cases, results at once unjust, illogical, and absurd, its purpose would have been made known in express terms, and not left to doubtful inference. The statute makes the mere non-erection of the sign negligence, and prescribes that no other proof shall be required to show negligence. Doubtless it is a presumption under this statute that if the sign were up the plaintiff would take notice of it, and heing thus warned would avoid injury. But I see nothing in this to preclude the defendant from showing affirmatively that the plaintiff was guilty of contributory negligence, without which the injury would not have occurred. Suppose, for example, that the defendant could show that the plaintiff saw the train nearing the crossing, and, nevertheless, rashly attempted to cross in the face of impending danger, what good reason v.14,no.6-22
can there bs'Why he' should not be permitted to do so? What reason would there 111 such case saying that if the sign had been up he might have been warned by it of the coming train and avoided the danger, seeing that he' had before him a more impressive warning of the impending danger than any sign-board could have given. The precise question before the court has not been decided by the supreme court' of Iowa. Every case cited from the Iowa reports might be distinguished from the present by essential circumstances. We have, however, no present purpose to review them, since to give them a critical analysis would extend this opinion beyond all reasonable limits. It is sufficient to say that, rightly understood, the Iowa decisions give such decided countenance to the conclusion at which we have arrived as to leave no doubt that the question will, when directly presented to the supreme court of Iowa, be decided as we have here determined it. Small v. R. 00. 50 Iowa, 338; Lang v.H. O. R. Co. 49 Iowa, 469; Dodge v. Burlington ct C. R. R. 00. 34 Iowa, 276; Speiwe v. Ohicago ti: N. W. R. Co. 25 Iowa, 139-142; Stewart v. Burlington et M. R. Co. 32 Iowa, 561, 562; Payne v. Chicaqo. R. l.ct P. R. 00.44: Iowa, 236. Themotion.for anew trial is, overruled.
, See Tucker v. Duncan. 9,FED., REP. 867; Thomas v. Delaware. etc., R. 00.8
THE:, CHINESE TAX CASES.
ON YOE:N HAl
Co. and others v. ,Ross and another.
D.Oregon. November 22,1882.)
ROAD WORK-LIABILITY FOIl-How ENFORCED.
A of Oregou provides that 11-11 male pel"Sons between certa,ln age!!, "residing" in a road district, shall be listed for road labor on,or before April 15th, and be liable to pet"form two days' work on the roads therein, and if any such person sball ,fail to do so after being assessed therefor and warned thereto by the'supervisor, the latter-may deliver a statement of such delinquency tq th,e:sheriff, the amount necessary to discharge it, to-wit, two dollars for each day's work; who shall 'thereupon, collect the liarneby seizure and sale of the personal oroperty althe delinquent ;alld if s1,1ch property cannot be found out of which tomaltesilch tax, the sheriff shall demand the alUouD,t from any perllon indebted , io 1he,same 0lIt ?f his personal he , m'akesbiltIl that he is not Jildebtcd to silch delinquent; and the sheriff shall l'ecei-ii!l fOll of such delinqueht. ta'll:,be-. sides his lawful fees, to be paid by the delinquent or..,colle,ctclk'fith,. the tax,